Title: Efficient Trespass: The Case for 'Bad Faith' Adverse Possession
Abstract: INTRODUCTION 1037 I. MENTALSTATESANDMORALITY 1046 A. Mental States in Adverse Possession Law 1046 B. Expanding the Taxonomy 1049 C. mat's So About Bad Faith? 1053 II. ADVERSE POSSESSION AS A DOCTRINE OF EFFICIENT TRESPASS 1059 A. Adverse Possession's Modern Niche 1059 B. Refining the Meaning of Efficient Trespass 1065 C. Discouraging Inefficient Trespass 1066 D. Encouraging (Very) Efficient Trespass 1073 III. PRACTICALITIES, OBJECTIONS, EXTENSIONS 1077 A. Different Fact Patterns 1077 B. Weighing Objections and Balancing Costs 1084 C. Limitations and Extensions 1091 CONCLUSION 1095 INTRODUCTION The adverse possession claimant-the trespasser who knows that the land she occupies is not her own1-is an anomalous figure in the law. While not disqualified from gaining title to land in many jurisdictions, the bad faith claimant tends to fare poorly in court2 and suffers regular drubbings in law review articles.3 Meanwhile, judicial and scholarly approval is lavished on her counterpart, the encroacher who labors under the misimpression that he occupies his own land.4 In this Article, I challenge this consensus view. Instead of triggering moral condemnation and legal disadvantage, a claimant's knowledge of the encroachment should be a prerequisite for obtaining title under a properly formulated doctrine of adverse possession. Many courts and commentators have supported an objective standard under which both knowing and inadvertent encroachers can fulfill the requirement in adverse possession law.5 But I go further to argue that only the claimant who knew that she was encroaching-and who documented that awareness6-should be able to take title to land through adverse possession. This surprising position follows logically from a wide-lensed look at the appropriate place of adverse possession in the overall framework of modern property law. When considered as part of a system that contains other, superior mechanisms for addressing problems such as innocent improvements and old title defects,7 adverse possession can best be understood as a doctrine of efficient trespass.8 It should work in concert with legal remedies that apply before the statute of limitations runs to test the relative valuations of record owners and encroachers and to winnow out those situations in which consensual market transactions cannot accomplish transfers of land to much higher-valuing users. The approach I take is not entirely unprecedented. Adverse possession's hostility requirement has sometimes been interpreted to disqualify people with an honest but mistaken belief in ownership of the land in question.9 Yet modern cases and commentary overwhelmingly eschew any requirement that a person realize that the land she occupies does not belong to her.10 Courts often distance themselves from any doctrinal requirement that would reward thieves over those who acted in good faith. Likewise, modern scholars register amazement that courts would ever require bad faith,12 and overwhelmingly argue that good faith claimants should be favored by the law.13 At one level, then, the argument presented here offers a belated justification for a now-discredited judicial position.14 But, more than that, the Article suggests a different way of thinking about adverse possession's place in the constellation of property doctrines. Specifically, I explore how state of mind requirements relate to what I view as the niche goal of adverse possession-moving land into the hands of parties who value it much more highly than do the record owners,15 where markets cannot do so. …
Publication Year: 2006
Publication Date: 2006-04-01
Language: en
Type: article
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Cited By Count: 17
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